In the Matter of Bell Petroleum Services, Inc., Debtor. United States Environmental Protection Agency v. Sequa Corporation and Chromalloy American Corp., United States of America v. Bell Petroleum Services, Inc., Regal International, Inc. And John R. Leigh, Sequa Corporation and Chromalloy American Corp.

The Environmental Protection Agency (EPA) seeks to recover its response costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) because of a discharge of chromium waste that contaminated a local water supply. Sequa Corporation appeals from the imposition of joint and several liability, challenges the EPA's decision to provide an alternate water supply system to the area in which the groundwater was contaminated by the chromium discharge, and contests the calculation of prejudgment interest and the application of the proceeds of the EPA's settlement with its co-defendants. We REVERSE the portion of the judgment imposing joint and several liability, and REMAND for further proceedings. Our review of the administrative record has convinced us that the EPA's decision to provide an alternate water supply was arbitrary and capricious; accordingly, we REVERSE the portion of the district court's judgment allowing the EPA to recover the costs of designing and constructing that system, and REMAND for deletion of those amounts and recalculating prejudgment interest.1

* In 1978, a citizen in the Odessa, Texas area complained about discolored drinking water. The Texas Water Commission conducted an investigation. It ultimately focused on a chrome-plating shop that was operated successively from 1971 through 1977 by John Leigh, Western Pollution Control Corporation (hereinafter referred to as Bell), and Woolley Tool Division of Chromalloy American Corporation (which later merged with Sequa), at 4318 Brazos Street, just outside the city limits of Odessa. The investigation showed that during the chrome-plating process, finished parts were rinsed, and the rinse water was pumped out of the building onto the ground.

In 1984, the EPA designated a 24-block area north of the Brazos Street facility as a Superfund site--"Odessa Chromium I." It authorized a response action pursuant to its authority under CERCLA Sec. 104, 42 U.S.C. Sec. 9604, and entered into a cooperative agreement with the State of Texas. The State was to perform a remedial investigation, feasibility study, and remedial design work for the site, with the EPA reimbursing the State for ninety percent of the costs. The remedial investigation revealed that the Trinity Aquifer, the only source of groundwater in the area, contained elevated concentrations of chromium.2

A "focused" feasibility study (FFS) was undertaken to evaluate the need to provide an alternative water supply pending completion of the remaining portion of the feasibility study and implementation of final remedial action.3 The FFS concluded that the City of Odessa's water system should be extended to provide service in the Odessa Chromium I area. On September 8, 1986, the EPA Regional Administrator issued a Record of Decision (ROD), finding that city water service should be extended to the site. Pursuant to the cooperative agreement, the State, through its contractor, designed and constructed the system, which was completed in 1988.

In December 1988, the EPA filed a CERCLA cost-recovery action against Bell, Sequa, and John Leigh, which was consolidated with an adversary proceeding the EPA had filed against Bell in Bell's bankruptcy case. The EPA sought to recover direct and indirect costs it incurred in studying, designing, and constructing the alternate water supply system.

In July 1989, the district court entered a case management order providing that the case would be decided in three phases: Phase I--liability, Phase II--recoverability of the EPA's response costs, and Phase III--"responsibility." In September 1989, the district court granted in part, and denied in part, the EPA's motion for summary judgment as to liability. In its memorandum opinion, it stated that the relative culpability of the parties and the "divisibility of liability" issues would be decided during Phase III. Although the district court ruled that CERCLA did not require the EPA to prove causation, it held an evidentiary hearing and made alternative findings and conclusions addressing causation, holding that "Leigh, Bell and Sequa caused the contamination."4 In March 1990, the district court granted the EPA's motion for clarification of the September 1989 summary judgment, holding that its previous opinion had provided that the defendants were jointly and severally liable. It also entered a declaratory judgment as to the defendants' liability for future response costs.

The Phase II proceeding on recoverability of response costs was handled through cross-motions for summary judgment. 734 F.Supp. 771. The district court held that the defendants had not met their burden of proving that the EPA's decision to implement an alternate water supply was arbitrary and capricious, and held that they were liable for the EPA's direct and indirect response costs, plus prejudgment interest from the date such costs were incurred.

On March 2, 1990, the EPA sought approval of a proposed consent decree, in which it settled its claims against Bell for all costs, past and future, for $1,000,000. Sequa objected to the settlement, contending that Bell was not being required to pay its fair share. The district court granted Sequa's request for a hearing on the fairness of the proposed consent decree, and entered an order providing that a Phase III hearing regarding apportionment of liability was to be conducted before it ruled on the motion for entry of the consent decree. In response to the EPA's motion for clarification of the scope of the hearing, the court ruled that the hearing would be limited to determining the relative contributions of Bell, Sequa, and Leigh to the contamination. After the Phase III hearing in June 1990, Sequa filed a motion for reconsideration on the issue of joint and several liability. On July 24, the district court denied that motion, and approved the consent decree. It held that the evidence at the Phase I and Phase III hearings demonstrated that there was no method of dividing the liability among the defendants which would rise to any level above mere speculation, because each of the proposed apportionment methods involved a significant assumption factor, inasmuch as records had been lost, and because each of the apportionment methods differed significantly. In the alternative, it concluded that, based on equitable factors, responsibility should be divided as follows: Bell--35%; Sequa--35%; and Leigh--30%.

In December 1990, the district court entered an order approving another consent decree, pursuant to which the EPA settled its claims against Leigh for past and future costs--for $100,000.

In sum, the district court held that Sequa is jointly and severally liable for $1,866,904.19, including the costs of studying, designing, and constructing the alternate water supply system. In addition, Sequa is jointly and severally liable for all future costs incurred by the EPA in studying, designing, and implementing a permanent remedy.5

CERCLA was enacted in 1980, and amended in 1986 by the Superfund Amendments and Reauthorization Act (SARA). Its purpose is to facilitate the prompt clean-up of hazardous waste sites. See, e.g., United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1500 (6th Cir.1989). CERCLA Sec. 104, 42 U.S.C. Sec. 9604, authorizes the President (who has delegated most of his authority under CERCLA to the EPA) to use Superfund money to respond to any threatened or actual release of any hazardous substance that may pose an imminent and substantial public health threat. CERCLA Sec. 107, 42 U.S.C. Sec. 9607, provides for the recovery of response costs from all persons responsible for the release of a hazardous substance. Response actions include both "remedial" and "removal" actions. Removal actions generally are immediate or interim responses, and remedial actions generally are permanent responses. See Voluntary Purchasing, Inc. v. Reilly, 889 F.2d 1380, 1382 n. 4 (5th Cir.1989).

The National Contingency Plan ("NCP"), 40 C.F.R. Part 300, promulgated by the EPA as mandated by CERCLA Sec. 105, 42 U.S.C. Sec. 9605, guides federal and state response activities. The NCP identifies methods for investigating the environmental and health problems resulting from a release or threatened release and criteria for determining the appropriate extent of response activities. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1533 n. 4 (10th Cir.1992); United States v. R.W. Meyer, Inc., 889 F.2d at 1500.

Since CERCLA's enactment, the federal courts have struggled to resolve the complicated, often confusing, questions posed by the concept of joint and several liability, and its application under a statute whose provisions are silent with respect to the scope of liability, but whose legislative history is clear that common law principles of joint and several liability may affect liability.6 The issue is one of first impression in this Circuit.

* Common Law: The Restatement of Torts

Although joint and several liability is commonly imposed in CERCLA cases,7 it is not mandatory in all such cases. United States v. Monsanto Co., 858 F.2d at 171. Instead, Congress intended that the federal courts determine the scope of liability in CERCLA cases under traditional and evolving common law principles, guided by the Restatement (Second) of Torts. Alcan-Butler, 964 F.2d at 268; O'Neil v. Picillo, 883 F.2d at 178; Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F.Supp. 1100, 1116 (N.D.Ill.1988); Chem-Dyne, 572 F.Supp. at 810.

Section 433 of the Restatement provides that:

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

Restatement (Second) of Torts, Sec. 433A.

The nature of the harm is the key factor in determining whether apportionment is appropriate. Distinct harms--e.g., where two defendants independently shoot the plaintiff at the same time, one wounding him in the arm and the other wounding him in the leg--are regarded as separate injuries. Although some of the elements of damages (such as lost wages or pain and suffering) may be difficult to apportion, "it is still possible, as a logical, reasonable, and practical matter, ... to make a rough estimate which will fairly apportion such subsidiary elements of damages." Id., comment b on subsection (1).

The Restatement also discusses "successive" harms, such as when "two defendants, independently operating the same plant, pollute a stream over successive periods of time." Id., comment c on subsection (1). Apportionment is appropriate, because "it is clear that each has caused a separate amount of harm, limited in time, and that neither has any responsibility for the harm caused by the other." Id.

The final situation discussed by the Restatement in which apportionment is available involves a single harm that is "divisible"--perhaps the most difficult type of harm to conceptualize. Such harm, "while not so clearly marked out as severable into distinct parts, [is] still capable of division upon a reasonable and rational basis, and of fair apportionment among the causes responsible.... Where such apportionment can be made without injustice to any of the parties, the court may require it to be made." Id., comment d on subsection (1). Two examples of such harm are described in the comment. The first is where cattle owned by two or more persons trespass upon the plaintiff's land and destroy his crops. Although "the aggregate harm is a lost crop, ... it may nevertheless be apportioned among the owners of the cattle, on the basis of the number owned by each, and the reasonable assumption that the respective harm done is proportionate to that number." Id. The second example involves pollution of a stream by two or more factories. There, "the interference with the plaintiff's use of the water may be treated as divisible in terms of degree, and may be apportioned among the owners of the factories, on the basis of evidence of the respective quantities of pollution discharged into the stream." Id.8

Apportionment is inappropriate for other kinds of harm, which, "by their very nature, are normally incapable of any logical, reasonable, or practical division." Id., comment on subsection (2). Examples of such harm are death, a single wound, the destruction of a house by fire, or the sinking of a barge. "Where two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm." Id.

Apportionment is also inappropriate in what the Restatement describes as "exceptional" cases, "in which injustice to the plaintiff may result." Id., comment h on subsection (1). For example, "one of two tortfeasors [may be] so hopelessly insolvent that the plaintiff will never be able to collect from him the share of the damages allocated to him." Id. Where the court deems it unjust to require the innocent plaintiff to bear the risk of one of the tortfeasors' insolvency, it may refuse to apportion damages in such a case. Id.

In sum, the nature of the harm is the determining factor with respect to whether apportionment is appropriate. Ultimately, the decision whether to impose joint and several liability turns on whether there is a reasonable and just method for determining the amount of harm that was caused by each defendant (or, in some cases, by an innocent cause or by the fault of the plaintiff). The question whether the harm to the plaintiff is capable of apportionment among two or more causes is a question of law. Restatement (Second) of Torts, Sec. 434(1)(b). Once it has been determined that the harm is capable of being apportioned among the various causes of it, the actual apportionment of damages is a question of fact. Id., Sec. 434(2)(b) & comment d.

Section 433B of the Restatement sets forth the burdens of proof. As a general rule, the plaintiff must prove that the defendant's tortious conduct caused the harm. Id., Sec. 433B(1). As we have already noted, however, this rule does not apply in CERCLA cases. See note 4, supra. Nevertheless, subsection (2) of Sec. 433B, which sets forth the burdens of proof with respect to apportionment, does apply and provides as follows:

Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

As explained in the comment, this rule applies only to "a proved wrongdoer who has in fact caused harm to the plaintiff." Id., comment d on subsection (2). Thus, the rule stated in subsection (2) will not permit a defendant to escape liability altogether, but only to limit its liability, if it can meet its burden of proving the amount of the harm that it caused. If it is unable to do so, it is liable for the full amount of the harm. According to the Restatement, the typical case to which this rule applies "is the pollution of a stream by a number of factories which discharge impurities into it." Id., comment c on subsection (2).

Comment e notes that there is a possibility that the rule stated in subsection (2) may cause disproportionate harm to defendants where each of a large number of them contributes a relatively small and insignificant part to the total harm. For example, "if a hundred factories each contribute a small, but still uncertain, amount of pollution to a stream, to hold each of them liable for the entire damage because he cannot show the amount of his contribution may perhaps be unjust." Id., comment e on subsection (2). The comment, however, expresses no conclusion with respect to the applicability of this illustration, noting that such a case had not arisen.

CERCLA is a strict liability statute, one of the purposes of which is to shift the cost of cleaning up environmental harm from the taxpayers to the parties who benefited from the disposal of the wastes that caused the harm. See, e.g., Chem-Dyne, 572 F.Supp. at 805-06. "The improper disposal or release of hazardous substances is an enormous and complex problem of national magnitude involving uniquely federal interests." Id. at 808. Often, liability is imposed upon entities for conduct predating the enactment of CERCLA, and even for conduct that was not illegal, unethical, or immoral at the time it occurred. We recognize the importance of keeping these facts in mind when attempting to develop a uniform federal common law for CERCLA cases. We also recognize, however, that CERCLA, as a strict liability statute that will not listen to pleas of "no fault," can be terribly unfair in certain instances in which parties may be required to pay huge amounts for damages to which their acts did not contribute. Congress recognized such possibilities and left it to the courts to fashion some rules that will, in appropriate instances, ameliorate this harshness. Accordingly, Congress has suggested, and we agree, that common-law principles of tort liability set forth in the Restatement provide sound guidance. In applying those principles to this CERCLA case, we think that it will be helpful to examine briefly some of the relevant CERCLA jurisprudence.

The first published case to address the scope of liability under CERCLA is United States v. Chem-Dyne Corp., 572 F.Supp. 802 (S.D.Ohio 1983), which was cited approvingly in the legislative history of the SARA amendments to CERCLA. In that case, 24 defendants, who allegedly generated or transported hazardous substances located at Chem-Dyne's treatment facility, sought "an early determination" that they were not jointly and severally liable for the EPA's response costs. Id. at 804. After examining the statute and its legislative history, the court concluded that provisions for joint and several liability were deleted from CERCLA "in order to avoid its universal application to inappropriate circumstances." Id. at 810. It relied on the Restatement for guidance in applying federal common law. Id.

The court described the nature of the "fairly complex factual determination" involved in deciding whether the defendants were jointly and severally liable as follows:

The Chem-Dyne facility contains a variety of hazardous waste from 289 generators or transporters, consisting of about 608,000 pounds of material. Some of the wastes have commingled but the identities of the sources of these wastes remain unascertained. The fact of the mixing of the wastes raises an issue as to the divisibility of the harm. Further, a dispute exists over which of the wastes have contaminated the ground water, the degree of their migration and concomitant health hazard. Finally, the volume of waste of a particular generator is not an accurate predictor of the risk associated with the waste because the toxicity or migratory potential of a particular hazardous substance generally varies independently with the volume of the waste.

Id. at 811. The court concluded that the defendants had not met their burden of demonstrating the divisibility of the harm and the degree to which each was responsible, and denied their motion for summary judgment. Id.

United States v. Ottati & Goss, Inc., 630 F.Supp. 1361 (D.N.H.1988), was a cost recovery action against operators and former operators of drum reconditioning businesses, property owners, and generators of wastes contained in the drums that were sent to the site for reconditioning. The evidence showed that chemical substances leaked or spilled from drums and were mixed together. Although the generators satisfied their burden of proving approximately how many drums each brought to the site, the court nevertheless imposed joint and several liability, because "the exact amount or quantity of deleterious chemicals or other noxious matter [could not] be pinpointed as to each defendant[, and] [t]he resulting proportionate harm to surface and groundwater [could not] be proportioned with any degree of accuracy as to each individual defendant." Id. at 1396.

A similar situation existed in O'Neil v. Picillo, 883 F.2d 176 (1st Cir.1989). The site at issue there was a Rhode Island pig farm that had been used as a waste disposal site. The site was described as having "massive trenches and pits 'filled with free-flowing, multi-colored, pungent liquid wastes' and thousands of 'dented and corroded drums containing a veritable potpourri of toxic fluids.' " Id. at 177. The defendants argued that it was possible to apportion the removal costs, because there was evidence of the total number of barrels excavated during each phase of the clean-up, the number of barrels in each phase attributable to them, and the cost of each phase. Id. at 181. There was testimony that, of the approximately 10,000 barrels excavated, only 300-400 could be attributable to a particular defendant. Id. at 182. The court concluded that because most of the waste could not be identified, and the defendants had the burden of accounting for the uncertainty, the imposition of joint and several liability was appropriate.9

On the other hand, the Third Circuit reversed a summary judgment in favor of the EPA, and remanded the case for further factual development on the scope of liability, in United States v. Alcan Aluminum Corp. (Alcan-Butler), 964 F.2d 252, 255 (3d Cir.1992). This case involved the Butler Tunnel Site, a network of approximately five square miles of underground mines, tunnels, caverns, pools, and waterways, drained by the Butler Tunnel into the Susquehanna River in Pennsylvania. During the 1970s, millions of gallons of liquid wastes containing hazardous substances were disposed of through a borehole that led directly into the mine workings. In 1985, 100,000 gallons of contaminated water were released from the site into the river.

The government filed a cost-recovery action against 20 defendants; all but Alcan settled. The district court granted summary judgment for the government, holding that Alcan was jointly and severally liable for the response costs. The Third Circuit held that the "intensely factual nature of the 'divisibility' issue" highlighted the district court's error in granting summary judgment without conducting a hearing. Id. at 269. It remanded the case in order to give Alcan the opportunity to limit or avoid liability by attempting to prove its personal contribution to the harm to the Susquehanna River. Thus, under the Third Circuit's approach, Alcan could escape liability altogether if it could prove that its "emulsion did not or could not, when mixed with other hazardous wastes, contribute to the release and the resultant response costs." Id. at 270.

The Third Circuit noted that the analysis involved in apportioning several liability is similar to that involved in apportioning damages among jointly and severally liable defendants in an action for contribution, because both focus on what harm was caused by the defendant. Id. at 270 n. 29. However, it stated that the issue of joint and several liability should be resolved at the initial liability stage, rather than at the contribution stage.10 It noted that drastic consequences could result from delaying that determination, because "a defendant could easily be strong-armed into settling where other defendants have settled in order to avoid being held liable for the remainder of the response costs." Id. It also noted that contribution would not be available from settling defendants, pursuant to CERCLA Sec. 113(f)(2).11 Id.

The Second Circuit essentially adopted the Third Circuit's approach to joint and several liability in another case involving Alcan, United States v. Alcan Aluminum Corp. (Alcan-PAS), 990 F.2d 711 (2d Cir.1993). That case involved a waste disposal and treatment center operated during the 1970s by Pollution Abatement Services (PAS). Alcan used PAS for the disposal or treatment of 4.6 million gallons of oil emulsion. The government brought a cost-recovery action against 83 defendants. As in Alcan-Butler, all of the defendants except Alcan settled. The Second Circuit reversed a summary judgment in favor of the government, stating that "Alcan should have the opportunity to show that the harm caused at PAS was capable of reasonable apportionment." Id. at 722. It held that Alcan was entitled to "present evidence relevant to establishing divisibility of harm, such as, proof disclosing the relative toxicity, migratory potential, degree of migration, and synergistic capacities of the hazardous substances at the site." Id.

The court stated that Alcan could escape liability if it could prove that its oil emulsion, when mixed with other hazardous wastes, did not contribute to the release and resulting clean-up costs. It acknowledged that "causation is being brought back into the case--through the backdoor, after being denied entry at the frontdoor--at the apportionment stage." Id. However, it pointed out that causation was "reintroduced only to permit a defendant to escape payment where its pollutants did not contribute more than background contamination and also cannot concentrate." Id.

With respect to the timing of the joint and several liability inquiry, the Second Circuit stated that it preferred the Third Circuit's "common sense approach." Id. It ultimately concluded, however, that "the choice as to when to address divisibility and apportionment are questions best left to the sound discretion of the trial court in the handling of an individual case." Id. at 723.

A "moderate" approach to joint and several liability was adopted in United States v. A & F Materials Co., Inc., 578 F.Supp. 1249 (S.D.Ill.1984). That case involved a disposal site at which over 7,000,000 gallons of waste were deposited. The court concluded that a rigid application of the Restatement approach to joint and several liability was inappropriate. Under the Restatement approach, a defendant who could not prove its contribution to the harm would be jointly and severally liable. The court thought that such a result would be inconsistent with congressional intent, because Congress was "concerned about the issue of fairness, and joint and several liability is extremely harsh and unfair if it is imposed on a defendant who contributed only a small amount of waste to a site." Id. at 1256.

The court concluded that six factors delineated in an unsuccessful amendment to CERCLA proposed by Representative (now Vice President) Gore could be used to "soften" the modern common law approach to joint and several liability in appropriate circumstances. Under this "moderate" approach, a court has the power to impose joint and several liability upon a defendant who cannot prove its contribution to an injury, but it also has the discretion to apportion damages in such a situation according to the "Gore factors":

(i) the ability of the parties to demonstrate that their contribution to a discharge[,] release or disposal of a hazardous waste can be distinguished;

(ii) the amount of the hazardous waste involved;

(iii) the degree of toxicity of the hazardous waste involved;

(iv) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;

(v) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and

(vi) the degree of cooperation by the parties with Federal, State, or local officials to prevent any harm to the public health or the environment.

Id. at 1256. The court stated that its moderate approach would promote fairness by allowing courts to be sensitive to the inherent unfairness of imposing joint and several liability on minor contributors, and to make rational distinctions based on such factors as the amount and toxicity of a particular defendant's contribution to a waste site. Id. at 1257.

In Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F.Supp. 1100 (N.D.Ill.1988), a private cost recovery action in which the government was not a party, the court adopted the A & F moderate approach to joint and several liability. However, it expressed no opinion on the propriety of that approach in cost recovery actions involving the government as plaintiff. Id. at 1118 & n. 12.

The A & F moderate approach, to the extent it is inconsistent with the Chem-Dyne approach to joint and several liability, was rejected in United States v. South Carolina Recycling and Disposal, Inc., 653 F.Supp. 984 (D.S.C.1986), aff'd in part and vacated in part, United States v. Monsanto Co., 858 F.2d 160 (4th Cir.1988). That case involved a site at which there were "thousands of corroded, leaking drums ... not segregated by source or waste type. Unknown, incompatible materials commingled to cause fires, fumes, and explosions." 653 F.Supp. at 994. The district court concluded that the harm was indivisible, because all of the substances at the site contributed synergistically, and it was impossible to ascertain the degree or relative contribution of each substance. Id. The court rejected volume as a basis for apportionment, finding that it "is not an accurate predictor of the risk associated with the waste because the toxicity or migratory potential of a particular hazardous substance generally varies independently of the volume." Id. at 995 (quoting Chem-Dyne, 572 F.Supp. at 811). The court concluded that "[s]uch arbitrary or theoretical means of cost apportionment do not diminish the indivisibility of the underlying harm, and are matters more appropriately considered in an action for contribution between responsible parties after plaintiff has been made whole." Id.

On appeal, the Fourth Circuit affirmed the imposition of joint and several liability. 858 F.2d at 173. It noted that the generator defendants had presented no evidence of a relationship between the volume of waste, the release of hazardous substances, and the harm at the site. Because the substances had commingled, apportionment was impossible "without some evidence disclosing the individual and interactive qualities of the substances deposited there." Id. at 172. Because "[c]ommon sense counsels that a million gallons of certain substances could be mixed together without significant consequences, whereas a few pints of others improperly mixed could result in disastrous consequences," the court concluded that evidence of the relative toxicity, migratory potential, and synergistic capacity of the various substances was both relevant and necessary. Id. at 172 & n. 26. The court noted, however, that under other circumstances, volume could be a reasonable basis for apportioning liability, in a situation in which independent factors had no substantial effect on the harm to the environment. Id. at 172 & n. 27.

The Fourth Circuit apparently agreed with the district court's rejection of the A & F moderate approach, stating that, while equitable factors are relevant in an action for contribution, "[t]hey are not pertinent to the question of joint and several liability, which focuses principally on the divisibility among responsible parties of the harm to the environment." 858 F.2d at 171 n. 22. Other courts have similarly concluded that equitable factors, such as those listed in the Gore amendment, have no place in making the decision whether to impose joint and several liability, but are appropriate in an action for contribution among jointly and severally liable defendants. See Alcan-Butler, 964 F.2d at 270 n. 29 ("the contribution proceeding is an equitable one in which a court is permitted to allocate resp